Evidence of meeting #45 for Natural Resources in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tribunal.
A recording is available from Parliament.
Conservative
The Chair Conservative Leon Benoit
Good afternoon, everyone.
We're here to continue our clause-by-clause on Bill C-20. We left off at clause 45. We had some discussion on clause 45. Is there any more discussion on clause 45?
Yes, Mr. Cullen.
(On clause 45--Powers with respect to witnesses and documents)
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
One second, Chair, I just want to catch up and see where we are.
I have one small question.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Within “Powers and Duties of a Tribunal”, it says that it's able to cross international boundaries and take evidence from other commissions. Does this work in reverse as well? In most of these conversations we're having, I cite only the U.S. I can't imagine any other nation when it comes to these inquiries, tribunals, and courts. Does the U.S. have a similar model for establishing a tribunal? If the answer is yes, can they do the same thing in our tribunal system, based on what's cited here in subclause 45.(3)?
Conservative
The Chair Conservative Leon Benoit
I welcome you all here again, Mr. Hénault, Mr. McCauley, Ms. MacKenzie.
Mr. McCauley, if you'd like to respond to that question, go ahead.
Dave McCauley Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
No, the United States system does not have an administrative tribunal similar to Canada's. I'm not certain if their courts would be able to come across the border to examine witnesses. Perhaps Ms. MacKenzie might know.
Brenda MacKenzie Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
Their ability to come across the border, to leave their own jurisdiction to speak to witnesses in other countries, is entirely up to their own domestic legislation. This power to take evidence outside Canada, if necessary, is patterned after our own domestic legislation in other tribunals. It's a necessary power.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
So the U.S. does not have a tribunal. Congress cannot establish a tribunal as the Parliament of Canada can? I'm asking this because they could allow this through the courts alone. Witnesses have raised concerns about the threat of lawsuit and the legal liability limits that exist in Canada—whether a judge would see our $75-million limit, or potentially our $650-million limit, as too low to allow a plaintiff to be heard in a U.S. court. That's why I'm asking these questions about subclause 45.(3). It's my understanding that the U.S. would have only the court system. They would go only through the courts for this—they don't have a tribunal mechanism.
Conservative
The Chair Conservative Leon Benoit
Mr. Cullen, that isn't something you'd expect our witnesses to be able to answer or to feel any obligation to answer. When you're talking about the American system, it's up to the Americans to decide what they can and can't do.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
When we say that through the tribunal mechanism we can go and collect evidence from the other side of the border, there's often something complementary written on the other side. It would be rare for Canada to establish something that says we can go forth and drag evidence across the border, but we won't allow it to happen the other way. Do the Americans have a matching amendment to make sure that this is not going to be seen in the U.S. as something that they won't seek to comply with, that Canada will be prevented from seeking those witnesses? That's my point. I don't need to hear all the intricacies of U.S. tribunal law.
Jacques Hénault Analyst, Nuclear Liability and Emergency Preparedness, Department of Natural Resources
In the United States they have a provision that in the case of what they call an extraordinary nuclear incident a special panel can be put in place. It's not like our tribunal. But it's a system for deciding claims by a panel. With respect to their being able to come across to Canada and gather evidence, I have no idea of their rules and procedures.
Conservative
The Chair Conservative Leon Benoit
Anything further on clause 45?
(Clause 45 agreed to on division)
(On clause 46—Examinations )
Conservative
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
A quick question.
The tribunal can require a physical examination. It doesn't specify here. Sometimes, especially in U.S. cases, but Canadian cases as well, one physician's opinion versus another... Does the claimant have any authority to have their own physician's examination brought forward to a tribunal, or can the government supersede that and say they'd have to use their doctor, the one the government assigned?
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
Thank you, Mr. Chair.
This gives the power to the tribunal to seek out the information it feels is necessary to assess a claim. The way the tribunal is set up in general is to allow matters to be heard expeditiously so the person making the claim doesn't have to have a lawyer. We've made it as easy as possible for the claimant, so naturally if the claimant wishes to bring forward evidence from any source, the tribunal is able to hear matters as expeditiously and casually as the circumstances will allow. This is drafted to allow the claimant to bring forward evidence the claimant feels is necessary to support the claim.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Okay. So essentially, if a claimant came forward and said they believe these are the ill effects they've had because of the accident, and they've got a doctor's report saying that, can the tribunal require another physical examination?
The way I read this right now, “...may require...to undergo physical or other examinations that are reasonably necessary to enable the Tribunal...”, the tribunal might simply say they didn't like the doctor's report or they didn't believe in it, and thereby create a loophole in which the government is asking for secondary examinations that may be counter to the first one. And then you talked about expeditiousness and trying to get the claims out the door. Could this not throw a wrench into that if the head of the tribunal started issuing requests for physical examinations of every claimant who came before him? Does clause 46 not give them that power?
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
The provision here does allow the tribunal to get the evidence it considers necessary to adjudicate claims fairly so everybody's claim is handled in a similar fashion. So to answer your question, yes, the tribunal is able to ask for a physical assessment that it feels reasonably necessary to enable it to determine the claim.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Last question on this. Just in legal terms, I know sometimes the word “reasonable” implies something. I'm trying to foresee a moment when we're not getting clogged up with disputing physicians as to what the effects of the accident were. Did the person have a pre-existing ailment? Was it something directly caused by...? Does “reasonable” implore the head of the tribunal in a certain direction?
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
Thank you for the question.
Yes, “reasonable” means reasonable to the average informed bystander, so it does, to use your word, “implore” the tribunal to act reasonably in asking for this information.
Conservative
Devinder Shory Conservative Calgary Northeast, AB
Thank you, Mr. Chair.
As Mr. Cullen from the NDP brought it, the way I read this clause is some insurance companies have a list of physicians, specialists, and they refer the individual to be examined by one of those doctors.